General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1997, Volume 14, No. 1 copyright American Bar Association. All rights reserved.
Federal Administrative Practice
BY PAUL JACKSON RICE
Paul Jackson Rice is a lawyer at Arent Fox Kintner Plotkin & Kahn in Washington, D.C. He concentrates in federal regulatory issues covering a wide range of motor vehicle and consumer product safety matters. Prior to joining the firm in 1990, he was the chief counsel for the Department of Transportation's National Highway Traffic Safety Administration.
It seems that everywhere we look, the federal government has justified its authority to regulate. Even clients with local businesses find themselves subject to federal laws. The thought of dealing with the federal bureaucracy can be frustrating and overwhelming.
A few simple steps can assist the general practitioner in demystifying the federal bureaucracy. Because there are so many departments and agencies and bureaus and commissions and boards, there must be some uniformity in how they operate or chaos would prevail. The trick is to figure out how to work the system.
All federal entities are creatures of statute (or the Constitution). Most of the programs that they regulate were also statutorily directed, so it's easy to start with the bold letters. Somewhere in the governing law, Congress designates what secretary or administrator will manage the program. The agency head will be directed to promulgate rules and regulations governing the program.
Under the Administrative Procedure Act, these regulations are subject to notice and comment before becoming effective. Notice is published in the Federal Register, and anyone can comment on the proposal. Trade publications in the different fields keep their readers informed when new regulations are proposed. In order for comments to be taken seriously, it is best not to insult the requesting agency. Accusing the agency officials of taking care of their friends falls into that category.
Now you have found the statutes in the U.S. Code Annotated and the governing rules and regulations in the Code of Federal Regulations, but what do they really mean? It's one thing to read the statutes and regulations. It is another to understand how the agency implements those regulations.
Where to Turn for Help
The federal government is made up of people. Some of these people are knowledgeable and helpful, some are knowledgeable and not helpful, and a few are not even knowledgeable. The trick is to find the knowledgeable and helpful people. They are out there, and they will gladly discuss their areas of responsibility with you over the phone. They will not provide you with a telephonic agency decision, but they will share facts and policies. Other lawyers who have dealt with a particular agency may be able to provide you with names of helpful individuals.
Usually, you will find that a lawyer in the agency's general counsel's office has responsibility for the matter in question. He or she will probably be knowledgeable and hopefully helpful. (The "don't insult" rule applies here, too.) Along with the lawyer, someone in the agency has responsibility for managing the program. These people are generally quite busy, but they have subordinates who have been designated a slice of the pie. Many times these people are delighted to tell you how much they know about their "desk." He or she may be willing to share an internal document used by the agency to administer the program in question. If you're in the dark, this will turn on the lights.
The Freedom of Information Act
The Freedom of Information Act (FOIA) (5 U.S.C. 552) is an excellent tool for obtaining material from the federal government. But FOIA only requires the provision of existing documents. Occasionally, someone will request a determination of an issue under FOIA. It doesn't work that way.
You are better off if you tailor your request to the specifics you are interested in. When I worked for the federal government, I periodically would see a seven-page FOIA request asking for everything imaginable. Generally, such a request does not fall into the right hands for the response. A carefully tailored request will be responded to by the person who is knowledgeable in the area. The "shotgun" request will be responded to by an administrative type who is more interested in appearance than substance. Request that agency officials phone you if they have any questions about the FOIA. Also, put a dollar limit on what they can charge you while researching the FOIA request, so that they must call you before they spend your retirement.
The law requires that FOIA requests be answered in ten working days (5 U.S.C. 552a(6)(A)(i)). But an agency with a large number of requests to meet may find it impossible to reply within that time frame. In fact, some agencies routinely take much longer, but they must show that they are handling their requests in order and with dispatch. If an agency fails to respond within ten working days, the requester may then sue in district court (5 U.S.C. 552a(6)(C)). Suing may not be the desired solution for your client, because the defendant agency can moot the case by responding to the FOIA request.
Another approach that is sometimes quite successful is to acknowledge in the FOIA request that the response may take more than ten working days. Advise the agency that you have no objection to the request taking longer, as long as they contact you and request additional time. This may establish helpful lines of communication.
If the agency officials withhold certain documents from your FOIA request, they must provide you with their justification (5 U.S.C. 552a(6)(A)(i)). You have the right to challenge the agency's decision by appealing the withholding of documents. It is an uphill battle, but sometimes documents that are withheld as pre-decisional (intra-office) memorandums (5 U.S.C. 552(b)(5)) are found to be relied on by the agency head in deciding the issue. In such cases, the documents lose their pre-decisional status and must be provided.
Even if an agency decides to withhold a document under the Freedom of Information Act, officials have an obligation to go through the document and segregate those portions that are releasable. The only exception to that requirement is when the protected and non-protected portions of the text are so "inextricably intertwined" that it would be useless to release any of it.
If you cannot obtain an opinion under the Freedom of Information Act, you still may be able to obtain an opinion from the agency for your client. Most general counsel's offices provide advisory opinion and interpretations of their rules and regulations. A letter addressed to the general counsel setting forth the issue and the applicable laws and regulations will suffice. However, if you are interested in how the issue is resolved, it is in your best interests to brief the issue and attempt to convince the general counsel that your position is correct.
The advisory opinions issued by the general counsel are public documents. They are on file at the department and will provide excellent assistance in resolving issues. The bad news is, the files may be in Washington, D.C., and you may be somewhere else. The good news is that these advisory opinions are beginning to be placed on-line and soon will be accessible to anyone with a modem.
Most of the public documents, including the advisory opinions, are filed in the agency's docket room. The docket room is open to the public and generally has the atmosphere of a small library. If you need to search for documents at the docket room, it is probably less expensive and quicker to have it done for you. A Washington law firm that interacts with the department or agency in question probably has a few legal assistants who know their way around the docket room.
If it is subsequently determined that your client acted in violation of the rules or procedures of the agency, the client may be subject to the assessment of fines or penalties. Keep in mind that the amount of the fines is not etched in stone. Your powers of negotiation and persuasion may make a sizeable monetary difference for your client.